An Act to amend the Canadian Human Rights Act

This bill was last introduced in the 39th Parliament, 1st Session, which ended in October 2007.

Sponsor

Jim Prentice  Conservative

Status

Not active, as of Feb. 21, 2007
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment repeals section 67 of the Canadian Human Rights Act and provides for a statutory review, within five years after the enactment receives royal assent, of the effects of the repeal by any parliamentary committee that may be designated or established for that purpose. It also contains a transitional provision with respect to aboriginal authorities.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Aboriginal AffairsOral Questions

June 8th, 2007 / noon
See context

Conservative

Brian Storseth Conservative Westlock—St. Paul, AB

Mr. Speaker, yesterday in the aboriginal affairs committee the opposition parties continued to block Bill C-44, further preventing Canada's aboriginal people from enjoying the same human rights protections as the rest of Canadians. Even though they have run out witnesses to hear, they are trying to continue the delay by calling the same witnesses back again.

Can the Parliamentary Secretary to the Minister of Indian Affairs please tell the House why after 30 years it is time to take action on delivering human rights to aboriginal Canadians?

Business of the HouseOral Questions

June 7th, 2007 / 3 p.m.
See context

York—Simcoe Ontario

Conservative

Peter Van Loan ConservativeLeader of the Government in the House of Commons and Minister for Democratic Reform

Mr. Speaker, today we will be continuing with the business of supply.

Tomorrow we hope to conclude third reading of Bill C-52. In answer to the question on priorities, I would point out that Bill C-52, the budget implement bill, is the number one priority of this government. We can talk about other priorities after we see an indication that it will be heading for royal assent. If we do not have it, it will result in the loss of $4.3 billion in 2006-07 year end measures which include: $1.5 billion for the Canada ecotrust for the provinces; $600 million for patient wait times guarantees; $400 million for Canada Health Infoway; $200 million for protection of endangered species; $30 million for the Great Bear rain forest; $600 million for labour market agreements for the provinces; $30 million for the Rick Hansen Foundation; $100 million in aid for Afghanistan; $100 million to Genome Canada; and so on. It is a long list of important priorities financing that will be lost if the bill is not passed by the end of this session in June. That is obviously our number one priority.

Next week will be getting things done for all of us week when we consider a number of bills that are in their final stages of the legislative process.

The following bills will be placed under Government Orders for debate: Bill C-11, An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts, which the Senate reported with amendments and which is now back before the House to receive the approval of the members, and Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments).

We are awaiting the Senate's report with amendments on Bill C-31, An Act to amend the Canada Elections Act and the Public Service Employment Act.

Bill C-33, An Act to amend the Income Tax Act, including amendments in relation to foreign investment entities and non-resident trusts, and to provide for the bijural expression of the provisions of that Act, Bill C-42, An Act to amend the Quarantine Act and Bill C-47, An Act respecting the protection of marks related to the Olympic Games and the Paralympic Games and protection against certain misleading business associations and making a related amendment to the Trade-marks Act, will probably be passed by the House at third reading.

Discussions have taken place with the opposition parties, and there may be consent to fast-track some or all of the following bills: Bill C-59, An Act to amend the Criminal Code (unauthorized recording of a movie), Bill S-6, An Act to amend the First Nations Land Management Act and Bill C-51, An Act to give effect to the Nunavik Inuit Land Claims Agreement and to make a consequential amendment to another Act.

There is also a possibility of quick passage of a new bill entitled “An act to amend the Geneva Conventions Act, an act to incorporate the Canadian Red Cross Society and the Trademarks Act”, which appears on today's notice paper.

There are a number of other bills I am still hoping we could get included in getting things done for all of us week, provided that they get reported back from committee, in particular, Bill C-6 aeronautics; Bill C-27 dangerous offenders; Bill C-32 impaired driving; and Bill C-44, the bill to grant first nations people the human rights that every other Canadian enjoys. First nations people expect the House to get things done for them as well, so I urge the aboriginal affairs committee to stop delaying Bill C-44 and report it back to the House early next week. It is a priority for this government.

June 7th, 2007 / 12:45 p.m.
See context

Commissioner, Canadian Human Rights Commission

David Langtry

As you know, we did launch a national aboriginal program, and that was prior to Bill C-44 being introduced. It took a long time to develop because we recognized that we don't have, and have not had, a relationship with many first nations because of the existence of section 67. We have developed an aboriginal outreach program or strategy, which is to enter into that engagement and dialogue, from an educational...to describe the work of the commission, as well as to learn from first nations communities.

When the chief commissioner indicated that we've embarked on that in a modest way, it's only because of not having additional resources. But it is our intention to continue to do that, to develop that, to work in partnership with a number of communities, whether or not Bill C-44 passes or doesn't pass. So we want to engage in that education, and as you know, section 67 is not an absolute bar, and we deal with complaints coming to us from reserves.

June 7th, 2007 / 12:35 p.m.
See context

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Thank you, Mr. Chair, and I want to thank the witnesses.

I have two brief comments, and I have a question about the Indian Act.

One is that we are actually missing an opportunity. I would argue that we should do the consultation before Bill C-44 is put in place. But we would also be missing an opportunity if we didn't provide the commission with some appropriate resources to undertake education and awareness right now. As we all know, the Canadian Human Rights Act does apply on reserve for non-Indian Act issues. So there would be an opportunity to do some work there.

The other point I want to quickly make is about the remedy. It is outside your mandate, but there has been a lot of concern expressed by the witnesses that if complaints are filed, they do not have the resources to actually address the remedy.

The piece I wanted to deal with was the Indian Act. The reason I wanted to raise it was because it wasn't just witnesses; there were also some experts in the area that raised concerns related to the Indian Act. One was the Bar Association. Their submission, on page 8, which I will not quote, quoted Justice Muldoon of the Federal Court of Canada, who speculated on the fact that the repeal of section 67 could have some substantial impacts on the Indian Act.

The second piece I wanted to bring to your attention was from the Native Women's Association of Canada on access to justice and indigenous legal traditions--it's on page 11 of that brief, in English. They actually quoted from the commission's own report. The commission indicated that they urged the repeal of section 67, but they actually went on to say, “However, the Commission would prefer that the Government take a proactive approach to preventing potential discrimination and not wait for complaints to be filed”, and so on. And it says:

The Commission, therefore, urges the Government, in consultation with First Nations, the Commission and other relevant bodies, to review provisions of the Indian Act and relevant policies and programs to ensure that they do not conflict with the Canadian Human Rights Act and other relevant provisions of domestic and international human rights law.

Although that doesn't talk about necessarily dismantling the Indian Act, it does address the fact that there are some serious problems with the Indian Act. So I think there was enough concern being raised about the potential one-off impacts of the Indian Act.... A number of people have talked about the fact that they feel a much more comprehensive review is needed.

I wonder, in light of this, if you could comment on your comment.

June 7th, 2007 / 12:30 p.m.
See context

Bloc

Yvon Lévesque Bloc Abitibi—Baie-James—Nunavik—Eeyou, QC

We might say that Bill C-44 is very important since it is going to change the life of the First Nations. Can you tell us if they have been consulted by the government since it made the commitment to consult them, on May 31st, 2005, two years ago?

Furthermore, I am quite sure that you were here when the department officials testified before us. You probably heard Mr. Watson's presentation. You have said that after repeal and in the implementation of Bill C-44, an interpretation clause would be necessary. You heard Mr. Watson express a contrary opinion. Do you maintain your position despite Mr. Watson's statement?

June 7th, 2007 / 12:25 p.m.
See context

Liberal

Anita Neville Liberal Winnipeg South Centre, MB

We're happy with five minutes, Mr. Chair. We're anxious that everybody have a chance as well.

I will ask a brief question and hope there's time for Mr. Russell to pick up on it.

Thank you for your presentation. You've addressed a number of important points of clarification, and I certainly appreciate it.

Mr. Pryce, who was here before, indicated that this bill has a broad impact, in spite of the nine words that are constantly referred to, and it is important that we do it well.

As you know, we met yesterday with the Human Rights Commission, and an interpretive principle was proposed to us. I am aware that aboriginal communities have suggested that you include the words in your principle, “indigenous legal traditions and customary law”. For some reason you're choosing not to include that in the interpretive principle.

You referenced in your closing, Ms. Lynch, that you respect the legal traditions, customary laws, and systems of dispute resolution. Why would you not include it, and could you tell us how those apply to those first nations that currently would not fall under Bill C-44--those that are currently exempt from it in your dealings with them?

June 7th, 2007 / 11:55 a.m.
See context

Senior Counsel, Aboriginal Law and Strategic Policy, Department of Justice

Charles Pryce

Thank you, Mr. Chair.

Again, to sound a little indecisive, in the Supreme Court case of Haida, there was definitely a very fact- and site-specific claim to aboriginal rights over title, dealing with a specific first nation, the Haida Nation or the Taku Tlingit First Nation. This current bill, Bill C-44, is a very different animal, if you can put it that way, in what the legislation is intended to do. It has broad impact across every first nation.

You mentioned fact- and site-specific, but that is how the jurisprudence on aboriginal treaty rights has evolved or exists. Different groups have different rights, so as far as how exactly this legislation will impact on particular first nations goes, it will vary. It is a very different animal.

The Supreme Court has not addressed the issue, first, of whether the duty to consult applies to the passage of legislation and, even if it does, whether it's engaged in this particular kind of legislation, which is about amending the Human Rights Act.

There would certainly be some difficulties or challenges if the court wanted to go down the path of finding the duty to consult in the legislative process. You know, there are well-established traditions of parliamentary supremacy, and the courts generally get involved once legislation is passed rather than during the passage of legislation. So it would require some deep analysis or thinking by the Supreme Court if they were to move in the direction of saying, in this particular context, that there is a duty to consult.

June 7th, 2007 / 11:50 a.m.
See context

Liberal

Nancy Karetak-Lindell Liberal Nunavut, NU

Thank you.

I want to reiterate that on page 9 of your presentation there seems to be a section missing. When you say that all witnesses testified that they support the principle, many of them said, “but not Bill C-44”. I think that's very critical to the discussion, and also to answer what Mr. Storseth was insinuating, that we're stalling because we don't want to give rights to people who live on reserve and are under the Indian Act. I think that is very misrepresentative.

You're asking people to trust a government that with those nine words says the impact will be minimal and that there will be new resources to deal with these complaints. We've already heard from many chiefs that they don't have enough resources to offer the very benefits that people across the way are saying they're entitled to. Already they don't have enough money to give proper housing. They don't have enough money to give education to all the people who are applying. They don't have money to give proper health care.

These people are supposed to trust a government that says there will be resources to be able to deliver those very services that they will most likely receive complaints about for not receiving, while at the United Nations, Canada is one of the two countries that is not supporting the declaration for the rights of indigenous people. They are supposed to trust a government that on the one hand is fighting to get Bill C-44 through and on the international level is fighting against the declaration for the rights of indigenous people.

These people are supposed to trust a government that is still calling itself “new” after 16 months. They are indicating, “Give us time to learn to run a country. Give us time to learn to work on a new relationship with people.” I feel a government should not have to be legislated to be respectful to people who are going to be impacted by legislation, and they should not have to be legislated to form a good working relationship with people.

I'm really puzzled as to how people should trust the good word of the government without an interpretive clause, without a non-derogation clause, and without legislation stating there will be resources and capacity-building. They're supposed to take the words--as I say, nine words in a bill--and assume that all good trust is going to come after that. It's very hard for me to believe that.

Thank you.

June 7th, 2007 / 11:30 a.m.
See context

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

One moment, please.

I am a lawyer, you are a lawyer. I have asked you a direct question. I am quite sure that you have read the Corbiere and Haïda decisions of the Supreme Court. So, do you believe that the government has the duty to consult in accordance with the rules of the Supreme Court, well before the implementation of Bill C-44? My question is clear.

June 7th, 2007 / 11:25 a.m.
See context

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

On behalf of the 600 members, I noted that there does not seem to be any trust between the department and the Assembly of First Nations. I do not know if you have noticed the same thing but this is what I have concluded after having heard all the witnesses.

There is a matter on which I would very much like to hear you and I will put the question to you. All the witnesses from the First Nations, men and women — because some female chiefs have also appeared before us — talked about a lack of consultation. I suppose that there is around this table someone who has read the Corbiere and Haïda decisions of the Supreme Court.

How would you define consultation in the context of Bill C-44? Have there been consultations or not?

June 7th, 2007 / 11:20 a.m.
See context

Liberal

Anita Neville Liberal Winnipeg South Centre, MB

Okay. That's important to know. Thank you.

I'm also struck by your comments--and we've had so many discussions on the impact of the implementation of Bill C-44 and the repeal--that you don't think it's going to be significant. What we are struck by, or what I am struck by, is the lack of any kind of impact analysis. You haven't been able to take some community as a model and try to do some analysis of what the impact would be. We've heard from some delegations that have come before the committee that the impact is going to be far-reaching, that they don't have either the capacity or the resources to deal with it, and that there's no attention to enhancing capacity or resources. So I'd like a little bit more comment from you on the impact, because the views we've heard have been widely divergent.

June 7th, 2007 / 11:20 a.m.
See context

Liberal

Anita Neville Liberal Winnipeg South Centre, MB

Thank you very much, and thank you again to all of you for being here today and to those of you who have returned. Your presentation raises more questions, I fear, than it provides answers--at least to me it does.

You note at the end, Mr. Watson, that with the exception of two witnesses, all witnesses have indicated that they support the intent of Bill C-44. You did not note the many, many concerns they had, whether with substance or process, which they expressed. I think their expressions of intent have very significant qualifications with them, and I think that has to be acknowledged.

I don't know where to begin. Let's talk about the interpretive clause to begin with.

What I'm hearing is trust the government, trust the Human Rights Commission. You know the Human Rights Commissioner is coming before us to present an option of an interpretive principle as opposed to an interpretive clause. Can you comment a little further on the whole issue of an interpretive clause? Then I have many other questions.

June 7th, 2007 / 11:10 a.m.
See context

Daniel Watson Senior Assistant Deputy Minister, Policy and Strategic Direction, Department of Indian Affairs and Northern Development

I've timed it, and I think I can keep it to a bit less than 10 minutes.

My colleague, Monsieur Ricard, has been unavoidably detained, but he should be here very shortly.

Thank you, Mr. Chairman.

It is a pleasure to be here once again to discuss Bill C-44. Today, I would like to comment on some of the testimony you have heard, and then my colleagues and I would be pleased to answer your questions.

As you are fully aware, Bill C-44 addresses an important principle. Simply put, this Bill will ensure all Canadians share in the right to be free from discrimination under the Canadian Human Rights Act. This Bill responds to repeated calls for repeal of section 67 and would remove a discriminatory provision which was originally intended as a temporary measure.

Let us talk about the difficult matter of balance. Mr. Chairman, your committee will soon have the extremely important work of determining how to deal with clause-by-clause study of Bill C-44, a task that will no doubt be informed by the vast testimony provided.

Witnesses have addressed the wide range of issues and offered many different perspectives. I think it would be fair to say that there are many areas in which testimony provided has not pointed to a clear consensus. On some issues, greater clarity may be useful to assist you in your deliberations.

In particular, we could highlight the discussions on the question of whether or not there is a need for an interpretive or a non-derogation clause. This is clearly a key issue for which there is no simple or consensus-based solution and around which there are many different conceptions.

Some witnesses have called for a non-derogation clause. Others have proposed interpretive clauses. Still others have proposed both or have used the terms interchangeably. Some witnesses have suggested that a provision be included in the Canadian Human Rights Act, while others, most notably the Canadian Human Rights Commission, have proposed that guidelines be developed outside the act, in concert with aboriginal communities.

It is important to distinguish between these two kinds of provisions. A non-derogation clause is a provision that sets out the relationship between a statute and the aboriginal and treaty rights protected by section 35 of the Constitution Act, 1982. The CHRA, like all other statutes, is automatically subject to the operation of section 35.

As the commission indicated in its report on the repeal of section 67, a non-derogation clause in the CHRA referring to section 35 of the Constitution would be redundant. In addition, such a clause may be problematic, as courts may treat the provision as giving additional protection to aboriginal and treaty rights beyond that provided by section 35.

In contrast to a non-derogation clause, an interpretive provision is a substantive clause that directs officials or tribunals to apply or interpret the statute in a particular way. In the context of the CHRA, in complaints against first nations it could be a provision that ensures that discrimination and defences under the CHRA are interpreted in a way that respects the collective and cultural interests of the first nation.

There are differing views about whether such a provision should be inside or outside of the CHRA and whether it should be a statement of principle or a substantive provision, and there have been various formulations proposed with differing effects. We have seen from experience that in an attempt to reach some consensus, interpretive clauses inevitably end up with language that is general and rather vague. The job of determining the precise meaning to be given to an interpretive clause will therefore fall to the tribunal, resulting in litigation to ultimately determine the issue on a case-by-case basis.

In our view, for the reasons l've just set out, including a statutory non-derogation or interpretive clause may result in legal challenges with uncertain or unintended consequences, including a possible weakening of the protection that the repeal of section 67 would bring.

Moreover, we don't believe a non-derogation clause is required. Rather than including a statutory interpretive provision, the commission could work with first nations and other aboriginal communities to develop appropriate guidelines, regulations, or policies to ensure that the CHRA is applied in a manner that is consistent and sensitive to the particular needs of those communities.

The commission's aboriginal employment policy is a key example of how the CHRC has already exercised its authority to address the needs of aboriginal people.

The other topic I would like to comment on today is the preparation for and impact of repeal. Many concerns have been put forth to this committee. It is certainly not the Minister's or the department's objective to further burden the First Nations as a result of repealing section 67.

The application of the Canadian Human Rights Act to federal programs and to First Nations is not entirely new. As Professor Chartrand pointed out in his testimony, the Commission and the courts have interpreted section 67 narrowly. Many activities that take place on reserves or are administered by the Department are already subject to the Act. So, while the repeal of section 67 is extremely important, we should not overstate the potential impacts.

Chief Commissioner Lynch testified that the Commission currently handles over 40 cases per year and Professor Chartrand concluded that the impacts would be “moderate” following repeal. We do not anticipate a huge influx of complaints. But we all knowledge that it is not possible to accurately predict the number of individual human rights complaints that would be directed to band councils, as these would be fact-specific, driven by whether an individual chooses to lodge a complaint if, for example, they feel that they have unjustifiably been denied a job or service.

Safeguards have been provided to give first nations time to adjust and to help them prepare, that is, there will be the six-month delay of the coming into force of the repeal and guidance from the commission.

As you are aware, the commission's funding is being adjusted to support its extended responsibilities following the repeal of section 67. It has established a national aboriginal program and is committed to the introduction of human rights redress mechanisms in a manner consistent with the diverse cultures and modes of decision-making of first nations in Canada.

You may wish to question commission representatives further on this matter during their appearance today and to also discuss with them the work they plan to undertake under their program. I'm certain that their testimony will go a long way towards alleviating some of the fears expressed by first nation groups and individuals that they will be alone in shouldering the impact of repeal.

Bill C-44 also includes a means to address unintended consequences, should they result, by way of clause 2 of the bill. This mandatory review of the effects of the repeal must occur within five years but could occur earlier if the designated parliamentary committee so chooses. The committee could also request a comprehensive response from the government on its findings.

Your committee has heard various views on the length of the transition period. Although six months has been viewed by many as insufficient, I would suggest that it is an adequate amount of time for first nations to begin to prepare for full implementation and for the commission to work with communities. And of course work with the first nations does not end after the transition period. Rather, work will be ongoing as the effect of the repeal becomes more clear and as we gain experience. On this and other issues, Minister Prentice welcomes the recommendations the committee will reach after hearing such a broad scope of witnesses.

In closing, Bill C-44 committee hearings have provided witnesses with an opportunity to express their concerns about the need to ensure Aboriginal rights, traditions and cultures are protected. This testimony has been passionate at times. I would like to acknowledge the concerns raised. I would also note that with the exception of two witnesses, all witnesses have testified that they support the principle of repealing section 67, further demonstrating the overwhelming desire to eliminate this exemption. I would respectfully suggest any considered changes to Bill C-44 need to be assessed against this important principle and the urgency of taking action.

Once again, Mr. Chairman and members of the committee, thank you for your invitation to reappear before you today. My colleagues and I are prepared to answer your questions.

June 7th, 2007 / 11:10 a.m.
See context

Conservative

The Chair Conservative Colin Mayes

I'll open this Standing Committee on Aboriginal Affairs and Northern Development of Thursday, June 7, 2007.

Committee members, you have the orders of the day before you. We're continuing our study of Bill C-44, An Act to amend the Canadian Human Rights Act.

We have two panels today. The first witnesses are from the Department of Indian Affairs and Northern Development. With us today are Daniel Watson, senior assistant deputy minister, policy and strategic direction, and Daniel Ricard, director general, litigation management and resolution branch. From the Department of Justice we have Douglas Kropp, senior counsel, resolution strategy unit; Charles Pryce, senior counsel, aboriginal law and strategic policy; and Martin Reiher, senior counsel, operations and programs section.

Welcome, witnesses.

We will begin with a 10-minute presentation. Mr. Watson, are you going to do it? Then we'll move into our question period.

Thank you.

June 5th, 2007 / 11:20 a.m.
See context

Louise Mandell Mandell Pinder, Barristers and Solicitors

Thank you very much.

I'd like to begin by thanking the panel for inviting me here, and also by stating what I believe to be obvious: that aboriginal organizations unequivocally support in principle the repeal of section 67.

The topic I'd like to address briefly is the process engaged in Bill C-44, which basically makes a unilateral amendment to the act and then engages consultation later.

I'd like to address you briefly on the legal point—that is, the point as to whether this is contrary to the principles of reconciliation and the honour of the Crown that have been articulated by the Supreme Court of Canada. It will be my submission that the whole process of amendment and then later consultation is contrary to the basic principles that have been articulated since 1977, when Parliament enacted the Canadian Human Rights Act unilaterally and then deferred this discussion to now, this date, as to how to incorporate the problems associated with the Indian Act and how we're to deal with it.

What has happened in the jurisprudence since 1977 and with the entrenchment of section 35 is that there has been a wholly changed legal landscape, and the movement in the jurisprudence is away from governance under the Indian Act and towards the general principle of reconciliation, which the Supreme Court of Canada has said is at the heart of aboriginal-Crown relations.

In terms of reconciliation, what is being reconciled is the pre-existence of aboriginal societies, including their legal systems and their laws, with the assertion of crown sovereignty. There's been a general recognition in the courts at both the lower and the higher levels that the assertion of crown sovereignty didn't extinguish the sovereignty of aboriginal people, so the reconciliation involves both the recognition of the aboriginal rights of governance and subsequently, with the recognition, the reconciliation of them. Corresponding duties have arisen on the Crown; they have been articulated by the Supreme Court of Canada, most notably in the Haida case, in order to achieve reconciliation. The duty of germane interest to your panel is the duty of consultation about accommodation.

I'd like to briefly address some of the major elements of the duty, because it does impact greatly on the issues of consultation engaged in this case.

The leading case is the Haida case, and I want to make it clear that this case didn't arise in the context of amending legislation; it arose in the context of crown conduct, in a situation in which the Crown granted a tree farm licence to a large forestry company up in Haida Gwaii—the Queen Charlotte Islands—to basically engage in a multi-year large-scale logging project on the island, and there had been no consultation with the Haida. The issue was whether, in the absence of proof of title or in the absence of concluding a treaty, the Crown was obligated to consult. In the landmark case in the Supreme Court of Canada, the court held that yes, there was a duty on the Crown. This is the duty that is engaged now; it's a government duty. I'll just go through some of its basic parameters.

The court considered where the duty to consult arises. Well, the duty to consult with aboriginal people, they say, is grounded in the honour of the Crown. It arises from the assertion of crown sovereignty, says the court. It continues into the process of treaty-making in all actions between the Crown and aboriginal people. They say the honour of the Crown is always at stake in its dealings with aboriginal people, but in particular the duty engages—and I'm going to read you what the court said:

But, when precisely does the duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it—

In this case we have an act that is definitely going to affect the governance rights of aboriginal people—not just the band council governance, but also the aboriginal governance rights, which are broader than band council rights. Many band councils, in light of the Indian Act, do exercise both rights that are considered to be more traditional in nature—not arising from delegated authority under the Indian Act—and also rights arising from the delegated authority.

The content of the duty—and it is to this point we say this committee must pay attention--is in proportion to the assessment of the strength of the case and the seriousness of the potentially adverse effect on the right or title claimed.

In all cases, the honour of the Crown requires the Crown to act in good faith to provide meaningful consultation appropriate to the circumstances. So we have in this instance the courts signalling a movement now away from the Indian Act and a movement toward reconciliation being the goal, with the duty to consult being part and parcel of how that reconciliation will occur. The court describes elements of the duty as including an obligation to consult as early as possible in the process of decision-making, providing all relevant information to the aboriginal people, flexibility and willingness to consider alternatives or make changes to its proposed action based on information obtained through consultation, and not promoting but listening with an open mind.

So applied to this legislative amendment you have Parliament being very aware of the potential existence of governance rights and that the constitutional recognition and affirmation of aboriginal rights is meant to reconcile indigenous and Canadian legal systems. Parliament is considering amending legislation in such a way that there is a potential to interfere with these governance rights. Prior to actually passing Bill C-44 and amending the act, the honour of the Crown suggests that Parliament should engage with first nations to determine what the potential effects are and to discuss options for avoiding or mitigating infringements and for reconciliation. Consultation should consider whether the process in the Canadian Human Rights Act is the right one for human rights complaints against a band council or whether a different indigenous institution, perhaps different legislation, might be more appropriate.

Before finishing on this, I'd like to also stress the fact that in 1977 there was a political commitment made by the federal Crown to first nations leaders that there would be consultation that would precede the application of the act, and that commitment directly engages the honour of the Crown.

We turn to the question, then, of who should be consulted. I know there's been some consultation about this, but because first nations across the country are organized according to different levels and types of power and authority, many have their own means of dealing with human rights issues, and all are affected by the operational framework of the Indian Act. So because of the very strong interference and the great impact, which I'm sure this committee has heard about, expressed by aboriginal people across the country as to what could happen and will happen, once human rights complaints are able to be adjudicated in respect of band councils in particular, there will be a great impact on aboriginal communities. So it suggests, because of the test, that merely canvassing the views of aboriginal organizations is not going to meet the test of consultation for all the aboriginal governments and governance issues that will be affected by this bill.

I wanted to briefly touch upon the Corbiere case, which was an analogous kind of situation in the sense that subsection 77(1) of the Indian Act, which excluded off-reserve members of Indian bands from the right to vote in band decisions, was held by the court to be inconsistent with subsection 15(1) of the charter. So it raised the question of how we are going to amend subsection 77(1), which was unconstitutional, in light of the fact that band members who lived off-reserve would be affected, or could be affected, by the regulations that needed to now get brought into being in order to repair the constitutional problem caused by the Corbiere case.

What happened in that case was that having concluded that there was a violation of the Constitution, the court suspended the implementation of the decision for 18 months in order to allow consultation with on-reserve and off-reserve band members before amending the legislation. Canada then engaged in a two-stage consultation process, first with aboriginal organizations, and during that time Canada funded the four national aboriginal groups to consult with their membership. So there was a mandate given by the membership to the organizations to represent their views, and INAC regional offices were funded as well, so there could be meetings and workshops.

Then there were reports. After about nine months of consultation in the first stage, draft amendments to the regulations were released. These were the subject of consultation. Then there was further communication with the chiefs and councils who were invited to comment on the draft regulations. And after input was received, the regulations were revised. Then after the regulations came into force, a second stage of consultation took place. It involved broader discussions on the Indian Act, governance, and accountability.

We think the issues involved in repealing or amending section 67 of the Canadian Human Rights Act are similar to those in Corbiere. In Corbiere, there were important difficulties and costs associated with trying to set up a system that balanced on- and off-reserve membership. Similarly, the cost of setting up systems and changing current systems to bring them into compliance with the Canadian Human Rights Act could be large, and defending challenges would be expensive.

I'd like to spend the last few minutes of my discussion to suggest that the real initiative, right now, in light of the jurisprudence, needs to include, in our view, not just a discussion focusing on the narrow issue of whether and how the Canadian Human Rights Act should apply to band councils making decisions under the Indian Act. To keep current with the jurisprudence and also current with the issues that are actually fully engaged by the negotiation of land claims agreements, self-government agreements, and the evolving jurisprudence that is forcing the recognition of pre-existing legal systems by the legal system of the Crown, what is required is a broader discussion on how to move away from the Indian Act towards aboriginal governance within the Canadian federation based on the recognition of the inherent right of aboriginal people to govern themselves.

If we simply focus on the Indian Act and on making the changes that are engaged there, there are innumerable problems with the Indian Act and innumerable problems in trying to sort out the problems of the Indian Act. But more importantly, the Royal Commission on Aboriginal Peoples, and others that have been looking at the law and looking at the evolution of how to create reconciliation, have strongly recommended that the impetus for any move to self-government must include a movement away from the Indian Act towards the full potential and realization of aboriginal laws and legal systems and aboriginal institutions that co-exist with those of the Crown in a federation. It would be based on a reconciliation. It would not be based on the unilateral imposition of legislation, especially legislation, as the Indian Act is, that is almost 100 years old and that carries the colonial baggage of requiring, in the legislation, a particular kind of government, and in addition, a particular kind of federal imposition as to how that government, over time, is to become civilized. These are problems that we now know to be problems created by the past but that we are really trying to move away from at this point.

Thank you very much.